( Orthopaedic)

Dear Doctor,
Our effort is to provide you with the latest and relevant developments in the field of medico legal services for this we are providing you some case references from the field of Orthopaedics.
Sachin Agarwal alias Vicky (through guardian) v. Dr. Ashok Arora
(Haryana SCDRC)
 
The complainants met with an accident and factured his left femur. Compression plating was done by the opposite party. After three months, the bone again broke from the same place and it was alleged that this occurred due to the negligent operation performed. The State Commission held that the hospital records of the hospital where he was taken after he suffered belied the version that the plate had broken on its own fracture a second time. The hospital record clearly mentioned that he was admitted after he fell down on the floor. No proper evidence was adduced to support his allegation that compression plating on a child of 13 years should never be done. Complaint was dismissed with costs of RS. 2000/-.   

Akhil Bhartiya Grahak Panchyat and Anr. v. Dr. Jog Hospital (Mah. SCDRC)   
The complainant, a working woman was operated upon for decompression of the spinal cord. She had been operated upon 10 years ago for the same ailment and had been suffering from pain in her left leg and waist since her first operation. In the complaint it was alleged that she continued to suffer from pain even after the operation because of negligent performance of operation.
 
The State Commission held that the complainant had failed to establish negligence and also the claim of having paid Rs.40000 as fees was not established. Complaint was dismissed.
  
Dr. Anumalla Satyanarayana v. K. Shankar
AP.
  
Consumer Protection Act, 1986-Section 15-"Appeal"-Section2(1)(g)-"Medical Negligence"-Complainant suffering from pain in the right leg-Consulted opposite party-Kept under his own diagnosis-No Relief-Complainant went another hospital-Leg was to be amputated because of gangrene had settled-complaint-District Forum allowed Complaint-Appeal-Opposite party did not consult any specialist-Did not refer the complainant to any other hospital-Order of District Forum upheld-Complainant entitled to compensation.
    
Held: The opposite party diagnosed that the complainant was suffering from "Thrombo  Angitis obliterans" which pertains to the blood and treated him accordingly. The opposite party advised diet control orally which was not denied by the complainant. But while following all the instructions of the opposite party under his treatment, the pain was aggravated and the complainant on his own discontinued the treatment and came to Hyderabad. In other words, those last ten days prior to coming to Hyderabad and getting admitted in Apollo Hospital were crucial and the fact that the leg had to be amputated due to gangrene established that there was negligence on the part of the opposite party. If the opposite party could not give relief to the complainant or suspected that gangrene could set in (as he admits having warned the complainant) he should have referred him to a vascular specialist instead of continuing to treat himself.
    
We, therefore are of the view that in the present case, the opposite party continued to treat the complainant according to his own diagnosis, though the complainant complained of no relief. The opposite party neither consulted another specialist nor referred the complainant to anther hospital/specialist though he was a known diabetic. The opposite party admitted that in his condition, gangrene could set in any time. Which actually was diagnosed to be so on the very next day when the respondent was admitted in Apollo Hospital and his right leg was amputated on 9.7.1994. Loosing the leg must have been a traumatic experience apart from the inconvenience and expenditure involved. It has also meant loss of earning by the bread winner complainant.
 
We, Therefore, uphold the order of District Forum. The appeal stands rejected.
  
R. Gopinathan v. Eskaycee Medical Foundation Pvt. Ltd. owning 
Devaki Hospital & Anr. 
(NCDRC)
  
the complaint, an advocate met with a motor accident on 26.10.1989 injuring his right ankle. He was taken to Devaki Hospital. The duty doctor, Dr. M. Jagannath Senior Consultant, anaesthesiologist attended on him and got e-rays of the injured part and gave necessary treatment. The request to get an opinion from an orthopaedician was refused by the patient. Next morning, he was examined by Dr. K. Chockalingam and operated by him same afternoon without the consent of his wife and his advocate friends. Hospital staff informed them that they had obtained the consent of the complainant himself. During this interval, the complainant's wife and his advocate colleagues had taken his reports and contacted Dr. Ardhanari, an orthopaedician on whose advice the complainant was admitted to Vijaya Hospital for treatment by Dr. P.V.A. Mohandas, after obtaining discharge against Medical Advice.
  
(LAMA) from Devaki Hospital, Dr. Mohandas, on the same night re-operated upon the patient and found formation of haematoma and infection. What was necessary was done.
   
According to the complainant the 1st operation was technically defective and was without proper reduction of the fracture. Inspite of constant and continuous physiotherapy he did not become normal and was till having pain and swelling around his right ankle with radiological changes. The complainant alleged that Dr. K. Chockalingam was guilty of delay in making appropriate timely diagnosis and in carrying out proper and qualified treatment particularly when he was not an orthopaedician. The skin gangrene could have had serious consequences resulting in amputation had the second operation not been performed. Since he had to suffer great mental agony and pain and suffer physical infirmity for the rest of his life he prayed for compensation to the tune of Rs. 6 lacs. 
  
The respondents the doctors and Eskaycee Medical Foundation, filed a detailed joint counter refuting the allegations made by the complainant
  
The State Commission after considering the evidence led by the opposite parties dismissed the complaint and held as under:
· That there was no delay in performing the surgery on the injured leg of the complainant.
· The complainant himself had given conscious and voluntary consent for the surgery.
· Respondent No.2, Dr. Chockalingam was a competent surgeon fully equipped to deal with trauma cases involving orthopaedic surgery and even Dr. P.V.A. Mohandas who is undoubtedly an eminent orthopaedic surgeon has not in his testimony cast any shadow or doubt on the credentials of Dr. K. Chockalingam in dealing with orthopaedic cases.
   
· It is seen from the evidence that there are two methods of surgery particularly in cases of this type of orthopaedic surgery particularly in cases of this type of orthopaedic surgery and both the methods are well recognised. Dr. K. Chockalingam followed the technique prevalent in United Kingdom while Dr. Mohandas followed the technique adopted in America. Both these techniques are well recognised.
· There was no evidence that the complainant suffered severe pain and even if it was so it was due to his discharge from the Devaki Hospital against the medical advice as in orthopaedic surgery the limb immobilisation of the operated joint and the elevated position of the limb are necessary in order to prevent oedema and venus oozing and consequent pain. These precautions were thrown to the winds by the adamant attitude of the complainant's wife in insisting upon the discharge of her husband against medical advice.
· The gangrene on the affected part could have developed subsequent to the discharge of the complainant from the Devaki Hospital and it may be due to several other factors such as injury sustained by the complainant in accident and second respondent cannot be held guilty of any negligence in the operation performed by him.
· Dr. K. Chockalingam has asserted that there was absolutely no necessity for second operation and if the patient had been left undisturbed he would have recovered fully and Dr. Mohandas has nowhere stated that the operation performed by the second respondent suffered from any irreversible or irreparable defect so as to necessiate second operation. There was no evidence that the present condition of the complainant is due to the operation performed by Dr. K. Chockalingam.
  
On appeal, the National Commission upheld the finding of the State Commission with further observations: 
  
"The following observations made by Mr. Justice Barrie in Moore v. Lewisham Group quoted by the State Commission applies to the present case:
  
"When there was two genuinely responsible schools of thought about the management of a clinical situation, the Courts could do no greater disservice to the community or the advancement of medical science than to place the hall mark of legality upon one form of treatment".   
1.HNC (1959)   
The National Commission also awarded costs of Rs.10000/- against the complainant to be paid to the doctor and the owners of the hospital.    
Mrs. K.K. Radha v. Dr. G.U. Shekhar & Anr.
(Ker SCDRC)
  
the complainant alleged that she sustained a fracture on the lower part of her leg, for which she got admitted to BKM Hospital, Payannur, where she was treated by Dr. Shekhar. She was told that he had to implant compression plate and having got it purchased, it was not used and instead wires and screws were used. After removal of plaster it was noticed that site of operation had developed an abscess. Second opinion was taken and an emergency operation was performed to remove foreign bodies inside her leg, and subsequently plaster had to be recast four times. Negligence was held on the basis of:
· Compression plate not used after getting it purchased and neither the complainant nor her husband were informed anything about it. It was not known what was done with the same. The x-ray film clearly revealed this.
· Dr. Usman, Professor in Orthopaedics in the Kasturba Medical College, Mangalore clearly stated that for treatment in the case of fracture of tibia using of wires is not advisble. Departure from the orthodox course of treatment was not justified by the opposite parties.
· The standard of care and skill expected of a doctor was grossly wanting as was evidenced by the need to remove extraneous materials found inside the leg by operation conducted by Dr. Usman. 
Rs.2 lacs was awarded as compensation. As the notices could not be served on Dr. Shekhar and since his address was not known, the second opposite party, i.e. the hospital's vicarious liability was fixed and it was asked to pay the compensation awarded.
  
In the case of P.P. Ismail v. K.K. Radha, an appeal was preferred against the decision of the Kerala State Commission by Mr. P.P. Ismail, Managing Director of BKM Hospital, who was asked to compensate to the tune of Rs. 2 lakhs as he was held vicariously liable for the negligence of Dr. G.U. Shekhar.    
The National Commission found no merit in this appeal, and upheld the decision of the State Commission.
  
Raj Kumar Agarwal v. Dr. B. Mukhopadhyaya
(Bihar SCDRC)
  
the complainant alleged that on 8.4.1993 he sustained a fracture of his left elbow for which he approached the opposite party doctor who operated upon him and said a final operation would be performed later. Instead of the opposite party, his assistants were treating him. On 28.4.1993 the opposite party told the complainant that the operation was not necessary and fee deposited will be refunded and just an injection will be injected in the affected bone and then physiotherapy will be started from the date and some medicines were advised and the patient was discharged. The complainant was advised to visit the opposite party after two months. The complainant however consulted another orthopaedician Dr. R. C. Singh, who advised immediate operation. However, when he again consulted the opposite party he asked him to undergo plastic surgery. Again he consulted Dr. R.C. Singh, who told him that plastic surgery was not needed and that such operation may make the elbow non-functional. Thereafter the complainant started feeling pain in his dead bone. The opposite party advised him surgical operation to remove pus and dead bone. The complainant then consulted third doctor who again advised him to get operation done who carried out the operation on complainant's hand. It was alleged that the complainant was till undergoing treatment and as there was much delay in operation improvement in the functioning of the hand wa not as expected. The complainant, therefore alleged that the situation arose from negligence in diagnosis and treatment as well as deficiency in service on part of the opposite party. He claimed by way of compensation i.e.Rs.915422/- with interest.
  
The opposite party controverted all the allegations. It was stated that the complainant had sustained compound comminuted fracture. Bone was broken into many pieces. The wound was communiting with the joint which was unfavourable situation and the would wa contamnated and infected. The complainant was also a diabetic patient. Therefore it was decided that to avoid further complications the limb should be given sufficient rest. Therefore the limb was put in plaster cast and inelevated position and proper drug therapy was given. It was found that there was a lot of improvement when the patient was examined on 12.4.1993. Diabetes was also under control and it was decided to perform a wound debridgement so to remove all the contaminants. The procedure was carried out by Dr,. John Mukhopadhya who is M.B.B.S., F.R.C.S., M.E.H. (Ortho). As it is minor procedure it was done by the above mentioned assistant of the opposite party. The procedure wa successful and the wound was covered by skin grafting which was performed on 16.4.1993. That procedure was also successful as the wound became close. It was decided that unless and until a full thickness skin graft was provided over a whole area over the original wound the operation to set right the fracture would not be carried out. Therefore, the operation fee was returned and the patient was referred to a plastic surgeon. The complainant, however disappeared from the opposite party's care and he consulted some other doctor. The patient also did not undergo the operations which were suggested by the other doctor, but again came back to the opposite party who advised him to go to the plastic surgeon for thickness skin replacement but the complainant patient did not abide by the advice. Therefore, the complainant consulted other doctors who advised him that surgical interference was not necessary. Progress was satisfactory. As the complainant had not taken advice given by the opposite party, no negligence could be attributed to any of the things which happened to the complainant later on. Also the opposite party stated that he had followed all the standard procedures and chosen the correct treatment in the given circumstances.
    
The State Commission held that the complainant obviously changed the doctors and had not followed treatment suggested by the opposite party. Even though the complainant's version is believed that Dr. Raju Ratan had expressed the opinion that immediate operation ought to have been carried out. It is not for the State Commission to decide which treatment between the two would have been correct and proper i.e. immediate operation or the treatment given by opposite party.
    
The State Commission held that when there are two genuinely responsible schools of thought about the method to be adopted in fixing fracture the court should not place hall-mark of legality on any one of the treatments. For this reason it came to the conclusion that merely because the opposite party chose one of the treatments available in treating the fracture, it could not be held that he was negligent. Hence, the case came to be dismissed.
   
Nurud din Kutubuddin Bulati v. Dr. L.N. Vohra & Anr.
(Mah. SCDRC)
   
the complainant was operated upon by the 1st opposite party for prolapsed intervertebral disc (P.I.D.) , but his back pain did not subside, and he had to be re-operated by another doctor whereafter the pain stopped.
  
The 1st opposite party stated that the complainant had L4-L5 disc prolapse, which he had removed, Only the prolapsed part of the disc was removed. The doctor who operated upon the complainant the second time stated that during surgery; (i) there was no disc protusion at L4-L5 level but fibrosis which were released; (ii) bulge at L3-L4 level was removed; and (iii) L5-S1 no disc prolapse, no fibrosis.
  
A subsequent MRI showed that there was prolapse and fibrosis at L5-S1. This proved that the complainant was prone to bulges and fibrosis. 
  
On consideration of these facts and circumstances, the State Commission held that the 1st opposite party had exercised reasonable skill and due diligence. Complaint was dismissed.
   
Shibu v. St. Joseph Hospital & Ors.
(Kerala SCDRC)
  
the complainant, a minor boy about 8 to 9 years old filed a complaint through his father, sustained a fracture of hisleft elbow and was shown to an orthopaedic surgeon attached to Agadi Nursing Home. Reduction and setting of the fracture was done, and left elbow put in plaster. As even after one month there was no relief from elbow pain, he again consulted the orthopaedician who suggested a second setting. The complainant did not agree and consulted another orthopaedician who told him that the diagnosis and treatment given earlier was wrong due to which the child had not been able to get improvement in the pain and suffering and there was deformity in the left elbow.
 
The complaint was dismissed on the following grounds.
   
· The evidence of the second orthopaedician who appeared as a witness on behalf of the complainant showed that the diagnosis and the treatment rendered by thefirst orthopaedician was correct.
· It was also stated by the second orthopaedician that the negligence of the patient himself in getting the plaster loosened may be one of the reasons for the deformity. Thus the negligence of the monor boy (contributory negligence) in tampering with the paster and giving movement to the fractured elbow without waiting for the full period for the removal of the paster, was the cause of deformity.
    
Krishna Kant De v. Dr. I. Roy & Ors.
(West Bengal SCDRC)
  
the complainant's daugher was operated by Dr. T. Roy, but it was alleged that after surgery her disability increased.
   
The State Commission on basis of evidence and facts placed before it held that the patient was suffering from "myopathy" which is a genetic disease of the muscles, and he had operated only to give some relief and improvement as a palliative measure and there was no wrong or negligence on his part, and awarded a token compensation of Rs. 100/- in favour of Dr. T. Roy.
  
V.P.Shanta & Ors. Cosmopolitan Hospitals (P) Ltd & Ors. 
(Kerala SCDRC)
  
the complainant's husband aged 59 years had a fall from his cot on 4.7.1990. As he went to the Cosmopolitan Hospital., Trivandrum where the 2nd opposite party examined him and opined that he had fracture of left neck of femur for which he was operated on 6.7.1990 . Simultaneously, he was also operated upon his salivary gland. During the post-operative period it was noticed that he had some respiratory difficulty but the duty doctors did not take it seriously and the operating surgeon had left. Ultimately the 5th opposite party came to the hospital, and examined the patient and announced that he was dead. The behavious of the hospital authorities after the death was highly suspicious. They sent a copy of the bill only after repeated requests, but refused to part with the x-ray films. It was alleged that this was on account of the fear of the fact that providing these x-rays would have revealed that conservative treatment like traction and medication would have cured the problem; but, in order to increase the number of operations and to augment income the decision to operate was taken. The hospital had also failed to carry out necessary pre-operative investigations and the services of a cardiologist were not obtained.
   
The State Commission held deficiency in service on part of the hospital on two issues (i) failure to deliver X-ray films, as the patient and his attendants (complainants in the instant case) have a right to be informed of the nature of injury sustained, and this right was deprived. The contention that the relatives had taken away the X-ray film, without furnishing a receipt was not accepted; (ii) not making proper arrangement for observation of the patient between 4.45 p.m. to 5.40 p.m. on 6.7.1990 after the patient was removed to post operative ward which was required after two operations on the patient out of which one was admittedly a very major operation. The patient developed cardiac arrest and pulmonary embolism and it was not certain that the complainant could have been saved. Something could have been done if the patient was not left unattended by a doctor and if cardiologist was summoned immediately. 
  
A compensation of Rs.25000/- with interest at the rate of 12% p.a. from the date of death till payment was awarded. This amount was to be paid by the hospital, as no negligence could be established against the doctors.